Wagner Shokai, Inc., Appellant, v. Kabushiki Kaisha Wako, Appellee, 699 F.2d 1390 (Fed. Cir. 1983)

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U.S. Court of Appeals for the Federal Circuit - 699 F.2d 1390 (Fed. Cir. 1983) Jan. 13, 1983

Richard Bennett, New York City, for appellant.

Harold I. Kaplan, Blum, Kaplan, Friedman, Silberman & Beran, New York City, for appellee.

Before BENNETT, SMITH and NIES, Circuit Judges.


NIES, Circuit Judge.

In the proceeding below, Wagner Shokai's motion to dismiss the amended petition for cancellation, which had been filed by Kabushiki Kaisha Wako, was denied on June 2, 1982. The present appeal was filed presumably in accordance with 15 U.S.C. § 1071 (1976), which provides in subsection (a) (1), in part, that an applicant who is dissatisfied with the "decision" of the Trademark Trial and Appeal Board may appeal to the United States Court of Customs and Patent Appeals. This court has succeeded to the jurisdiction of the Court of Customs and Patent Appeals, Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, Sec. 127(a), 96 Stat. 25, 38, and has adopted its precedents. South Corp. v. United States, 690 F.2d 1368, 215 USPQ 657 (Fed. Cir. 1982).

In United States Treasury v. Synthetic Plastics Co., 341 F.2d 157, 52 Cust. & Pat.App. 967, 144 USPQ 429 (Cust. & Pat.App.1965), it was held: "The term 'decision' when used in such context [15 U.S.C. § 1071] means a dispositive decision in which a right has been adjudicated." A denial of a motion to dismiss is not dispositive. Seamless Rubber Co. v. Ethicon, 268 F.2d 231, 46 Cust. & Pat.App. 950, 122 USPQ 391 (Cust. & Pat.App.1959). See also Master, Wardens, etc. v. Sheffield Steel Corp., 215 F.2d 285, 286, 42 Cust. & Pat.App. 726, 103 USPQ 54, 55 (Cust. & Pat.App.1954); Husky Trailer Mfg. Co. v. Mack Trucks, Inc., 168 USPQ 658 (S.D. Tex. 1971); C. Wright, Handbook of the Law of Federal Courts, p. 505, Sec. 101 (3d ed. 1976).

There being no basis for the present appeal, it is, therefore, dismissed by the court, sua sponte.

So ordered.